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Leaders of a Beautiful Struggle, et al. v. Baltimore Police Department, et al.

The Brennan Center, in conjunction with the Electronic Frontier Foundation and others, filed an amicus brief urging the full U.S. Court of Appeals for the Fourth Circuit to rehear a case challenging the Baltimore Police Department’s Aerial Investigation Research (AIR) pilot program on Fourth Amendment grounds.

Last Updated: December 7, 2020
Published: December 7, 2020

Update: On June 24, 2021, the U.S. Court of Appeals for the Fourth Circuit, sitting en banc, reversed the panel decision and awar­ded a prelim­in­ary injunc­tion to community activ­ists from Lead­ers of a Beau­ti­ful Struggle, find­ing that the Baltimore Police Depart­ment’s (BPD) Aerial Invest­ig­a­tion Research (AIR) pilot program viol­ated the Fourth Amend­ment. 

In the major­ity opin­ion writ­ten by Chief Judge Roger Gregory, the court held that even though the pilot program was discon­tin­ued, the Plaintiffs’ claims were not moot because some data was retained from the program. The court went on to over­turn the district court’s ruling, explain­ing that “because the AIR program enables police to deduce from the whole of indi­vidu­als’ move­ments, we hold that access­ing its data is a search, and its warrant­less oper­a­tion viol­ates the Fourth Amend­ment.” The opin­ion stated that AIR data “surpass[es] the preci­sion even of GPS data and CSLI” as used in U.S. v. Carpenter and is “more like ‘attach[ing] an ankle monit­or’ to every person in the city.”

In a separ­ate concur­rence, Chief Judge Gregory emphas­ized both that high rates of viol­ent crime in certain neigh­bor­hoods of Baltimore are the product of racism and chronic under­in­vest­ment in communit­ies, and that over-surveilling and poli­cing those neigh­bor­hoods is an inad­equate solu­tion. We are glad to see this ruling and exten­sion of Carpenter, and the affirm­a­tion of Amer­ic­ans’ right to live free from indis­crim­in­ate aerial surveil­lance. Read the court’s opin­ion here.

Back­ground:

On April 9, 2020, the Amer­ican Civil Liber­ties Union (ACLU) and ACLU of Mary­land filed a lawsuit against the Baltimore Police Depart­ment chal­len­ging the consti­tu­tion­al­ity of the depart­ment’s Aerial Invest­ig­a­tion Research (AIR) pilot program, a long-term, wide-area aerial surveil­lance program that can record the move­ments of virtu­ally all of Baltimore’s resid­ents at once. The plaintiffs for the case include Lead­ers of a Beau­ti­ful Struggle, a grass­roots think tank advan­cing the public policy interests of Black people in Baltimore; Erricka Bridge­ford, co-founder and co-organ­izer of the Baltimore Cease­fire 365 project; and Kevin James, an inform­a­tion-tech­no­logy profes­sional and community organ­izer.

In the lawsuit, the ACLU argued that the AIR program under­mines the rights to privacy and free asso­ci­ation and consti­tutes a search under the First and Fourth Amend­ments of the U.S. Consti­tu­tion. The U.S. District Court for the District of Mary­land disagreed, conclud­ing that the AIR program could legally continue. Read the Court’s opin­ion here.

On April 30, 2020, the ACLU appealed to the U.S. Court of Appeals for the Fourth Circuit. The ACLU argued that the acquis­i­tion of loca­tion inform­a­tion through wide-area aerial surveil­lance is a Fourth Amend­ment search and that, contrary to the District Court’s decision, the Supreme Court’s ruling in Carpenter v. United States does implic­ate the AIR program, which is signi­fic­antly more invas­ive than the other brief, targeted aerial obser­va­tions permit­ted in the past.  

On Novem­ber 5, 2020, a panel of three Fourth Circuit judges handed down a divided opin­ion uphold­ing the District Court’s decision. The major­ity found that the AIR program does not viol­ate a reas­on­able expect­a­tion of privacy and is a reas­on­able “program­matic search” under the “special needs” doctrine. In dissent, Chief Judge Gregory explained that he would have reversed the District Court and prelim­in­ar­ily enjoined the AIR program. He concluded that because the AIR program does amount to long-term surveil­lance, effect­ing a Fourth Amend­ment search, Carpenter controls the outcome of the case. 

On Novem­ber 19, 2020, the plaintiffs filed a peti­tion for rehear­ing en banc, asking that all 15 active circuit judges rehear the case and over­turn the panel opin­ion.

On Novem­ber 25, 2020, the Bren­nan Center, Elec­tronic Fron­tier Found­a­tion, Elec­tronic Privacy Inform­a­tion Center, Freedom­Works Found­a­tion, National Asso­ci­ation of Crim­inal Defense Lawyers, and Ruther­ford Insti­tute filed an amicus brief in support of the peti­tion for rehear­ing en banc. The brief argues that a rehear­ing is neces­sary because the panel’s decision conflicts with Carpenter as well as exist­ing Fourth Amend­ment preced­ent on the “special needs” doctrine.

Amici argue that the panel’s decision that the AIR program does not contra­vene Carpenter stems from the erro­neous conclu­sion that the program cannot capture identi­fy­ing char­ac­ter­ist­ics of people or auto­mo­biles. In fact, as the brief presents, it is possible to “reidentify” or “dean­onym­ize” indi­vidu­als from the data collec­ted by the AIR program. Further­more, when coup­ling the aerial surveil­lance foot­age with exist­ing data­sets owned by the Baltimore Police Depart­ment, such as CCTV cameras and auto­mated license plate read­ers, indi­vidual iden­ti­fic­a­tion is almost guar­an­teed. The contract for the AIR program expli­citly plans for integ­ra­tion with other surveil­lance data­sets. The brief explains how, through its permeat­ing, expans­ive, and continu­ous surveil­lance, the AIR program dramat­ic­ally reduces the degree of privacy afforded to the resid­ents of Baltimore. Surveil­lance tech­no­lo­gies that collect detailed records about people’s move­ments, like the AIR program, infringe on indi­vidu­als’ reas­on­able expect­a­tions of privacy under Carpenter.

The brief next lays out how the panel’s decision conflicts with a second Fourth Amend­ment prin­ciple: exist­ing preced­ent on the “special needs” doctrine and other suspi­cion­less searches. The panel’s altern­at­ive hold­ing that the AIR program satis­fies Fourth Amend­ment scru­tiny under “the balan­cing test used for program­matic searches” is mistaken. Under the Fourth Amend­ment, no “balan­cing test” exists for program­matic searches under­taken for ordin­ary law enforce­ment purposes, like crim­inal invest­ig­a­tions or prosec­u­tions. Supreme Court preced­ent is clear that “warrant­less searches are typic­ally unreas­on­able where a search is under­taken by law enforce­ment offi­cials to discover evid­ence of crim­inal wrong­do­ing.” The AIR program is a law enforce­ment invest­ig­at­ive and crime-control tool. Thus, the “special needs” doctrine does not apply. The applic­a­tion of the “special needs” excep­tion to justify a program of warrant­less, suspi­cion­less searches through Baltimore’s AIR program is a dramatic and danger­ous expan­sion of this prin­ciple.

Lastly, amici argue that in addi­tion to contra­dict­ing these two Fourth Amend­ment prin­ciples, this case exem­pli­fies the dispar­ate burden of govern­ment surveil­lance borne by communit­ies of color. Intrus­ive aerial surveil­lance programs are often deployed in cities with large communit­ies of color, such as Compton, Cali­for­nia; Phil­adelphia, Pennsylvania; and Dayton, Ohio. The AIR program also raises seri­ous First Amend­ment concerns due to its capa­city to chill free speech and assembly in surveilled spaces. For all of these reas­ons, amici main­tain that the Court should rehear the case en banc.